Last month, the State’s highest court, the Court of Appeals, upheld the Appellate Division’s decision annulling the New York State Department of Environmental Conservation (DEC) issuance of permits to Sand Land Corporation (“Sandland”) for renewal and expansion of sand mining operations at a 50-acre site in Southampton, New York and remanded the matter back to the DEC. The site, owned by Sandland, is a pre-existing sand mining site.

In Town of Southampton v. New York State Department of Envtl. Conservation, the question before the Court of Appeals was whether NYS Environmental Conservation Law (“ECL”) §23-2703(3) prohibit the processing of applications in Suffolk County for renewal and modifications where local zoning ordinances prohibits mining uses.

ECL §23-2703(3) Declaration of Public Policy, Subsection 3 states, “No agency of this state shall consider an application for a permit to mine as complete or process such application for a permit to mine pursuant to this title, within counties with a population of one million or more which draws its primary source of drinking water for a majority of county residents from a designated sole source aquifer, if local zoning laws or ordinances prohibit mining uses within the area proposed to be mined.” Suffolk County satisfies this criterion having a population of one million or more and drawing its primary source of drinking water from a sole source aquifer.

In 2019, the DEC interpreted ECL 23-2703(3) to apply to new applications only- not to expansion of existing mines. In March 2019, DEC issued both a renewal permit to allow mining on 34.5acres of the 50-acre site and a modification permit allowing an increase in depth of mining. The Town of Southampton, several neighboring landowners, and civic and environmental groups, commenced an Article 78 against Sandland and the DEC seeking to annul Sandland’s mining permit, because mining is prohibited in the zoning district where the property is located, ECL §23-2703 (3) applies and the DEC is prohibited from processing the application.

Although the Court of Appeals agreed that ECL 23-2703(3) must be read to recognize Sandland’s constitutionally protected rights as a legal pre-existing nonconforming use, the Court did not extend that right to mine to an indefinite depth. The Court found that “the dipositive question in determining whether the expansion that Sandland seeks is within the limits of its prior non-conforming use is whether Sandland manifested an intent to mine the additional acres and the expanded depth it sought in its permit applications, and the extent to which the Town recognized Sandland’s use of the parcel.”

The Court found in this case, there is no determination of the extent of Sandland’s prior non-conforming use and remanded it back to the Supreme Court to remand back to the DEC for further proceedings. Upon remand, the DEC must ascertain from the Town, whether Sandland’s proposed use is with the scope of its prior nonconforming use.

Takeaway: The State’s mining law limits the DEC on Long Island and will only permit Sandland to mine within the scope of its prior nonconforming use.

Took a walk on lunch break to create a collection of industry and “gas punk” type photos.
Patrick Hendry, Unsplash

            The Phase I Environmental Site Assessment (“ESA”) is the quintessential environmental diligence tool for transactions involving real property.  A Phase I ESA includes a site inspection and review of current and past uses and ownership, among other things, to evaluate actual and potential environmental conditions.  If performed in accordance with the All Appropriate Inquiry Rule (“AAI Rule”), a Phase I ESA serves as the initial step to establish affirmative defenses to potential liability imposed by the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”).

As outlined earlier in our prior post, ASTM Adopts New Phase I ESA Standard – Impact to Environmental Diligence and CERCLA Affirmative Defenses | Long Island Land Use and Zoning (lilanduseandzoning.com), ASTM updated and adopted a new Phase I ESA standard in late 2021.  Despite the adoption by ASTM, the legal diligence standard to satisfy the AAI Rule and the threshold criteria to qualify for affirmative defenses under CERCLA remained the historic ASTM E1527-13 standard.

After undergoing multiple rounds of public comment, the United States Environmental Protection Agency (“EPA”) issued a final rule on December 15, 2022 to adopt the ASTM E1527-21 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process” (“New Phase I ESA Standard”).  EPA’s final rule confirmed the New Phase I ESA Standard was consistent with the statutory requirements to satisfy the AAI Rule, and thereby the baseline requirement to avail prospective purchasers of the innocent landowner, contiguous property owner and bona fide prospective purchaser defenses to CERLCA.  The New Phase I ESA Standard became effective on February 13, 2023.

In addition to authorizing the New Phase I ESA Standard, EPA’s final rule put a sunset on the historic ASTM E1527-13.  According to the final rule, reference to the historic ASTM E1527-13 as compliant will be removed from the AAI Rule one year following publication of the EPA final rule, or December 15, 2023.  However, the reference provision that will be added to the AAI Rule, reflecting the sunset, states that the historic ASTM E1527-13 shall remain valid, “until February 13, 2024…”   While the discrepancy in the period of applicability for the historic ASTM E1527-13 is something to be aware of when evaluating compliance with the AAI Rule, the New Phase I Standard represents best practices, and prospective purchasers should strongly consider employing the new standard, despite the lingering applicability of the historic standard.

The New Phase I Standard is more rigorous than the historic ASTM E1527-13 standard, broadening the scope of particular investigation and analysis. As highlighted in our earlier post, the new Phase I Standard modifies the scope of historical reviews for adjoining properties, expands title search standards, revises definitions for Recognized Environmental Conditions (“RECs”), Controlled RECs and Historic RECs, and provides for evaluation of emerging compounds like PFOA/PFAS, among several other procedural reporting and definitional clarifications. 

Requesting a Phase I ESA has become a routine pre-acquisition diligence item.  There is risk in relying on a non-compliant Phase I ESA, misinterpreting findings and conclusions, or failing to take appropriate action upon notice of an environmental condition. Knowledgeable environmental counsel can assist in navigating these issues and defining options to achieve specified outcomes.

It’s time to turn the page and close the chapter on the expiring ASTM E1527-13 as the recognized ESA standard.  Long live ASTM E1527-21!

The Huntington Town Board is currently seeking input from residents, businesses and others for a new plan for the redevelopment of the Melville Employment Center (“MEC”).  The new plan will build upon a prior plan that was adopted by the Town Board in 2016.  That plan – known as the Melville Employment Center Plan (“MECP”) – was adopted to help the area remain competitive as a major employment hub and enhance the town’s tax base.  It also sought to advance the goals and objectives of the town’s overall comprehensive plan by proposing a mix of land uses, including housing, offices, retail and restaurant uses.  According to Supervisor Ed Smyth, the area needs to be reimagined in light of the post-pandemic changes in business and employment practices that have left many buildings vacant.

After several measures proposed by the MECP were shot down by the Town Board in December 2021, the Board recently scheduled several “listening sessions” to solicit input from those who would be most impacted by redevelopment in the study area.  The study area includes the Route 110 corridor, which runs north-south through the hamlet of Melville, and is generally bounded by Pinelawn Road to the east, Walt Whitman Road to the west and the Huntington-Babylon town boundary to the south. It also includes parcels fronting on the South Service Road and those accessed by Spagnoli Road.

Vacancies in office uses in the Melville area rose sharply during the pandemic, and with the continuation of remote and hybrid work schedules, vacancy rates are not expected to improve in the near future.  According to a Cushman & Wakefield report that analyzed economic and commercial real estate activity on Long Island in the fourth quarter of 2022, office vacancies in Western Suffolk County continue to rise and currently stand at 17.2%. 

The Town Board encouraged residents, civic groups, organizations and agencies that may be impacted by future redevelopment in the MEC to attend a listening session to share their thoughts and opinions.  Sessions were held on December 8, 2022 and January 26, 2023, and additional sessions may be scheduled in the future.

According to the Town’s website, information about the sessions can be obtained from Supervisor Smyth’s office by calling (631) 351-3030.

For most people, the idea of “Green Energy” likely evokes images of solar panels and wind turbines. However, the movement toward renewable energy, and a more reliable and efficient power grid, involves many other forms of technology that may yet be unfamiliar to the average person. But as the push to expand Green Energy production grows, so too will the prevalence of the technologies needed to support the industry.

On Long Island, communities from Hempstead to Southold are witnessing the introduction of a previously unfamiliar form of Green-adjacent technology in the form of Battery Energy Storage Systems, or “BESS”. I refer to BESS facilities as “Green-adjacent” because, unlike wind and solar farms, they do not produce electricity of their own. Instead, they store it. So far, local reception of these uses is mixed.

What Are BESS?

BESS facilities generally consist of rows of rechargeable batteries housed in self-contained, interconnected storage units. BESS facilities typically operate by drawing surplus energy from the local power grid during periods of low usage and storing it for later distribution back into the grid during peak demand. However, they can also be used as direct storage for electricity produced by renewable energy production facilities, like wind and solar farms. In either case, BESS stabilize the local power grid by ensuring reliability during periods when the grid might otherwise experience a partial or total deficit in voltage, commonly known as “brownouts” and “blackouts”. Thus, proponents of BESS offer that these facilities can reinforce the local power grid not only on a daily or routine basis, but also during emergencies when demand is especially high or when electrical transmission from outside the local grid is severed.

BESS and Zoning

From a land use perspective, BESS facilities are a low-impact uses. Once a facility is constructed and operational, it requires no regular staffing, only routine maintenance. This results in virtually no traffic, and almost no need for onsite parking. The facilities can also be monitored remotely, which further reduces traffic, and onsite staffing and parking. Site lighting at BESS facilities is also largely unnecessary, except for security purposes. The absence of employees also means there is virtually no water consumption at BESS facilities, and commensurately, little to no sewage.

The only potentially significant planning concern associated with BESS facilities is noise generated by cooling fans. However, noise is not always a problem depending on the size and configuration of a project. In instances where noise may be an issue, the industry has implemented methods of noise mitigation, including the use of sound barriers and landscaping.

Naturally, not everyone is sold on BESS. Opponents of these facilities have raised concerns over the presence of highly flammable substances, such as from lithium-ion batteries, and possible air and groundwater contamination. Historically, concerns about such threats were resolved by zoning certain uses out of residential areas and restricting them to high-intensity industrial districts. However, that is not always feasible with BESS.

BESS facilities must connect to the local power grid through a substation with adequate capacity to accommodate the transmission between the BESS facility and the grid. Additionally, the greater the distance between a BESS facility and the substation, the less efficient the transmission will be. As a result, designing a viable BESS facility may require that a BESS facility be located in or near a residential district in some cases. This is certain to be the situation in more urbanized areas of Long Island, like western Nassau County, where there is high density of uses and districts in close proximity to one another. Thus, planning for the future of BESS facilities on Long Island will not be without its challenges.

Status of Local Regulations

To date, the Towns of Brookhaven, Huntington, Islip and Southampton are the only four of Long Island’s 13 towns to adopt zoning regulations for BESS facilities. Their respective regulations are summarized below. The Town of Riverhead Town Board very recently discussed a set of draft BESS regulations based on the model law published by the New York State Energy Research and Development Authority (NYSERDA) (available here: https://www.lilanduseandzoning.com/wp-content/uploads/sites/128/2023/01/NYSERDA-model-1.pdf). However, the future of that legislation is uncertain. Other towns, like the Town of Southold, are discussing possible moratoria on BESS facilities out of concern for potential environmental impacts and public safety.

  1. Town of Brookhaven

The Town of Brookhaven—Long Island’s largest town geographically, and second largest by population–enacted its BESS zoning regulations in February 2020. They are set forth in Sections 85-814 through 85-817 of the Town’s Zoning Code, which may be accessed here: https://www.lilanduseandzoning.com/wp-content/uploads/sites/128/2023/01/Brookhaven-4.pdf

Like the NYSERDA model, Brookhaven’s regulations separate BESS facilities into two tiers based on system capacity. Tier I projects are BESS facilities having capacity up to 599 kilowatt hours (kWh). They are permitted in the Town’s J-2 and J-5 Business Districts by special permit from the Brookhaven Planning Board, and are permitted by right in the Town’s L-1, L-2, and L-4 Industrial Districts. Tier II projects are BESS facilities having capacity of 600 kWh or greater. Unlike Tier I projects, Tier II projects are restricted to the L-1, L-2, and L-4 Industrial Districts.

Other notable requirements in Brookhaven’s BESS regulations include the minimum lot size for all BESS projects (40,000 sq. ft.); moderate to substantial setback requirements; and various other design standards affecting clearing, site lighting, and noise mitigation. The code further requires the approval of a decommissioning plan and the posting of decommissioning bond.

2. Town of Huntington

The Town of Huntington enacted its BESS zoning regulations in October, 2020. They are set forth in Section 198-68.3 of the Town’s Zoning Code, which may be accessed here: https://www.lilanduseandzoning.com/wp-content/uploads/sites/128/2023/01/Huntington-1.pdf.

Unlike Brookhaven, the Town of Huntington does not separate BESS projects into tiers. Instead, facilities that are two (2) acres or larger and within 200 ft. of a residential district require a Planning Board special permit. The code is otherwise fairly generous toward BESS projects, allowing them as principal permitted uses in all Light Industrial Districts (I-1 through I-4) in addition to the General Industrial (I-5) and Generating Station (I-6) Districts. BESS projects are also permitted as accessory uses in these districts, and by special permit in the General Business (C-6) District, if they occupy 2% or less of the project site and serve another building or facility on the same premises.

Like Brookhaven, the Town of Huntington’s BESS regulations include several design requirements affecting setbacks, height, site lighting, and noise mitigation. The approval of a decommissioning plan is also required.

3. Town of Islip

The Town of Islip enacted its BESS zoning regulations in July 2022. They are set forth in Section 68-456 of the Town’s Zoning Code, which may be accessed here: https://www.lilanduseandzoning.com/wp-content/uploads/sites/128/2023/01/Islip-1.pdf

The Town of Islip operates on a three-tier classification system, with Tier III being the largest (601 kWh or greater) followed by Tier II (81-600 kWh), and then Tier I (80 kwH or smaller). Tier I BESS are permitted in all zoning districts in the Town. Tier II BESS are permitted in the Town’s B-1, B-2, and B-3 Business District in addition to its Industrial Districts (excluding Industrial Business [I-B]). Tier III BESS are restricted to the Industrial 1 and Industrial 2 Districts only.

In addition to imposing design standards and decommissioning requirements similar to Brookhaven and Huntington, the Town of Islip code includes specific provisions regarding commissioning plans, project operations, and safety during a project’s lifetime.

4. Town of Southampton

The Town of Southampton enacted its BESS zoning regulations in January 2021. They are set forth in Section 330-162.21 of the Town’s Zoning Code, which may be accessed here: https://www.lilanduseandzoning.com/wp-content/uploads/sites/128/2023/01/Southampton-1.pdf

In Southampton (outside the incorporated villages), BESS facilities are permitted in all zoning districts, including residential districts, subject to varying standards depending on the district in question. Additionally, the Town sets aside specific “avoidance areas” having special environmental, historical, cultural, or recreational value where BESS facilities are prohibited.

Like the other towns discussed, Southampton imposes specific standards governing setbacks, site lighting, and noise mitigation, among other things. It also requires a decommissioning plan, and payment into a “decommissioning fund”.

Note: The attached regulations are presented as published on the General Codes website on the date of this post. Independent review of the current regulations of the governing town should be performed in connection with any future project through the General Codes website (https://www.generalcode.com/library/#) or at the town’s offices.

As part of her 2023 State of State address, Governor Kathy Hochul announced a statewide strategy to address New York’s housing crisis by building 800,000 new homes over the next decade. The plan, dubbed as the “New York Housing Compact,” is a comprehensive, multi-pronged strategy that mandates local participation and grants incentives to achieve housing growth across the State.  It allows municipalities the flexibility to achieve mandated housing goals, but includes the possibility of State intervention for those that fall short.

Housing Growth Targets

The Housing Compact will require all cities, towns, and villages to achieve specific targets for housing growth on a three-year cycle. For New York City and other downstate municipalities that are served by the Metropolitan Transportation Authority (“MTA”), the housing growth target is three percent over three years. For municipalities in upstate counties where the housing need is less acute, the new homes target is one percent over three years.  Municipalities will have broad discretion to decide how best to increase housing supply in order to meet their targets.

To encourage the inclusion of higher-density and affordable housing as part of the new growth, approved multi-family and affordable units will be assigned extra weight in calculating a municipality’s progress toward its goals.  For example, municipalities will receive credit for two units for every new affordable housing unit constructed.

Municipalities that do not meet their target, but are implementing good faith measures or “Preferred Actions” designed to spur development to achieve the growth targets, will be granted an additional three-year grace period to meet their new housing goals.   

Funds for Planning and Infrastructure Improvements

The Housing Compact will make available a $250 million Infrastructure Fund and $20 million Planning Fund to encourage the construction of new housing throughout the State. This funding can be used by municipalities to undertake new zoning measures or develop other strategies to help them hit their growth targets.  Municipalities can also submit requests for funds to pay for critical infrastructure improvements, such as for water and sewer extensions and new roads that would support the addition of new housing.  Municipalities may obtain support and guidance from a new Housing Planning Office within New York State Homes and Community Renewal created under the plan.

Mandate Transit-Oriented Development

The Compact requires municipalities with MTA rail and subway stations to rezone the area within a half-mile radius of the station for residential use at a minimum density of 25 units per acre.  According to an announcement on the State’s website, the Governor believes that expanding housing opportunities in transit-oriented communities will provide more families with improved access to jobs and thriving sustainable communities.

Incentives to Build and Rehabilitate Housing

The Housing Compact is accompanied by a series of new proposals to incentivize the construction of new housing and the rehabilitation of existing housing. This includes new property tax exemptions to encourage housing development near train stations and incentivize affordable housing in commercial buildings that are converted to residential use in New York City.  Property tax exemptions will also be offered to support homeowners who build Accessory Dwelling Units and property owners who undertake certain renovations in New York City.

New York State Homes and Community Renewal will be directed to make $5 million in State Low Income Housing Tax Credits available to support the development of mixed-income housing outside of New York City.

To stimulate production of new rental housing in New York City, the Governor pledged to work with the State Legislature to renew the state’s former “421-a” tax abatement program, which encouraged developers to set aside units in new buildings for affordable housing.

Fast-Track Housing Approval as a Remedy

Housing projects with affordable housing that are denied a permit in municipalities that fall short of their growth targets and fail to take good faith Preferred Actions to spur development, may be eligible for fast-track housing approval.  This fast-track process will require an appeal to a new State Housing Approval Board or to the courts. Appealed projects will be approved unless a municipality can demonstrate a valid health or safety reason for denying the application. 

Expedited Environmental Review

In recognition that the State’s environmental review process can be used by municipalities and project opponents to stall or stop a development project, the Housing Compact proposes an expedited environmental review process for certain housing projects.  Notwithstanding expedited environmental review, the process will include safeguards designed to ensure that these developments will not create environmental harm.

Mixed Reception from Local Officials

Here on Long Island, the Governor’s ambitious proposal to address the housing crisis received mixed reviews from local officials.  According to a recent article published in Newsday, Suffolk County Executive Steve Bellone said that he supports the plan, because it “will incentivize local municipalities to work closely with the state to address an issue that is critical to Long Island’s economic future.”  Huntington Supervisor Ed Smyth was critical of the proposal and said that he “expects the Town of Huntington to exceed the governor’s goals, but it will be done without the governor’s heavy-handed involvement.”

A more measured approach was taken by Brookhaven Supervisor Ed Romaine, who acknowledged the need for more housing, but is waiting for more details from the governor’s office.  However, he warned that the plan will not work if the state tries to control local zoning.  Smithtown Supervisor Edward Wehrheim reacted similarly, and said that it’s “problematic” for “a higher-level government to override local zoning.”  These same concerns are likely to be echoed by local officials across the State who view the Governor’s proposal as trampling on home rule authority.

In 2022, Governor Hochul tried to address the State’s housing crisis by requiring municipalities to permit accessory dwelling units on lots zoned for single-family homes.  That proposal quickly lost steam and was eventually dropped following criticism by local officials of the State’s attempt to control local zoning decisions.  The Governor’s new proposal presents another political minefield – one that she is apparently willing to navigate in order to address the State’s housing problem.  The plan’s success will depend on the level of collaboration between the State and local governments and the willingness of all parties to finding a solution.  If battle lines are drawn, this proposal is doomed to the same fate.

Additional details of the New York Housing Compact are expected to be released in the coming months, as the State Legislature begins its 2023 legislative session.

Recently, the Suffolk County Supreme Court affirmed the Southampton Village Zoning Board of Appeals (ZBA) denial of a special permit to subdivide the subject property into two residential lots in the Village’s Office District. In 99 Sanford Place LLC, v Zoning Board of Appeals of the Incorporated Village of Southampton, (Sup. Ct. Suffolk County. Sept. 20, 2022) Justice Linda Kevins dismissed an Article 78 petition that asked the court to annul the ZBA’s 2021 denial of the special permit despite a remarkably similar application that was granted across the street for the same kind of residential use in the Village’s Office District.

As previously discussed in this blog, classification of a use as allowable by special permit is “tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood.” See, e.g., 7-Eleven v. Inc. Vill. of Mineola, 127 A.D.3d 1209 [2d Dep’t 2015] (affirming grant of Article 78 petition where the record contained “no evidence that the petitioners’ proposed use of the premises would have a greater impact . . . than any as-of-right use”).

Faced with its own prior precedent in favor of granting the requested special use permit, the ZBA nevertheless denied the application, concluding that 99 Sanford’s proposed two residential uses would more adversely impact the neighborhood than office use. The Village’s ZBA’s denial of 99 Sanford Place LLC eight-page denial of the special permit was not supported by any factual findings or evidence to support this conclusion. Instead, the ZBA merely regurgitated the statutory criteria for granting a special permit and found in merely two paragraphs that “it has not been established to the [ZBA] that the particular criteria set forth within the Village Code have been met by the presentation of the applicant.” The ZBA did not distinguish its prior precent for granting similar relief across the street, which was made part of the record by petitioner’s counsel.

Among the various arguments made by the petitioner in its Article 78, the strongest argument was that “a decision of an administrative agency which neither adheres to its own precedent nor indicates a reason for reaching a different result on essentially the same facts, is arbitrary and capricious.” See, Knight v. Amelkin 68 NY2d 975, 977 [1986]. The petitioner went on to argue that the ZBA failed to follow its prior determinations that granted similar application in the village with little to no factual findings or evidence

But that is not how the Court saw it, and despite expressly finding that 99 Sanford’s submissions in this action “are sufficient to meet [its] burden” to “prove the allegations in [its] petition,” the court dismissed the Petition.

Against all odds and with great deference to the municipality, the Court found no merit to petitioner’s argument that the ZBA failed to follow its own prior precedent and summarily affirmed the ZBA’s denial of the special use permit application with no supporting evidence in the denial. Remarkably, the court went on to find that although the ZBA is bound to follow its own precedent, it determined that the prior grant for the same relief was sufficiently distinguishable from the present case despite there being nothing in the decision of the ZBA to support that finding.

On December 30, 2022, the petitioner filed a motion for leave to reargue. Stay tuned for more updates.

Flying Fox
James Wainscoat, Unsplash

In November 2015, the northern long-eared bat was listed as a threatened species due to the devastating impact of white-nose syndrome.  White-nose syndrome is a disease caused by a fungus that affects hibernating bats and is decimating the bat population.  As a result of continued population decline, the U.S. Fish and Wildlife Service (“USFWS”) announced a final rule to reclassify the northern long-eared bat as endangered under the Endangered Species Act (“ESA”).  The rule will take effect January 30, 2023.

According to the USFWS press release, “the northern long-eared bat is found in 37 states in the eastern and north central United States, the District of Columbia, and all Canadian provinces from the Atlantic Coast west to the southern Northwest Territories and eastern British Columbia.  These bats mostly spend the winter hibernating in caves and abandoned mines.  During summer, northern long-eared bats roost alone or in small colonies underneath bark or in cavities or crevices of both live and dead trees.  They emerge at dusk to fly primarily through the understory of forested areas, feeding on insects.”  The press release indicates that bats contribute at least $3 billion annually to the US agricultural economy through pest control and pollination.

The reclassification of the northern long-eared bat as an endangered species mandates certain blanket protections under section 9 of the ESA and eliminates the application of species-specific, tailored protections afforded by the 4(d) rule.  The practical impact of the endangered species designation for development projects is that projects with the potential to impact northern long-eared bat habitat must undergo a stringent ESA permitting process, and develop and implement a Habitat Conservation Plan (“HCP”).

As part of the permitting process, the USFWS prepares a biological opinion under section 7 of the ESA and conducts National Historical Preservation Act and NEPA analysis; it reviews the HCP for adequacy, prepares a findings document and opens the public comment periods for NEPA and HCP documentation.

Because the population decline is disease-related and not due to habitat loss, certain development factors, such as a projects location (more than 5 miles from a known hibernation site) and/or projects with clearing and tree removal performed during the bat’s hibernation period (roughly November through March), may be permitted.  These same measures are referenced in USFWS guidance and noted as likely protective according to the Federal Register; however, the USFWS cautions that such factors, among others, are guidance-based, and not compliance-based exceptions to the ESA permitting process.

Given the range of the northern long-eared bat and its presence in New York and on Long Island, developers should factor potential impacts where tree removal is required as part of a development plan.

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Sea-Cliff-Today

After more than half a century, the Village of Sea Cliff is in the process of adopting a new Comprehensive Plan to update the 1970 Village Master Plan.  New York State recommends that municipalities update their Comprehensive Plans on a regular basis, to identify changes and trends that the community is undergoing, as well as develop a shared vision and implementation path for its future.  Hence, a new Sea Cliff Comprehensive Plan is long overdue.

The Sea Cliff Board of Trustees (“Village Board”) initiated the process back in 2019 when it created the Long-Range Steering Committee and tasked it with surveying community members to determine what changes or improvements they would like to see in the Village.  After a two-year delay due to the coronavirus pandemic, the Village Board issued a Request for Qualifications in January 2022. A Request for Proposals followed in March 2022, seeking qualified consulting firms who could assist the Village in developing a new comprehensive plan.  The Village Board ultimately selected BFJ Planning, a New York City-based consulting firm with expertise in planning, urban design and environmental analysis to assist it in developing a new long-range plan.

BFJ Planning is currently in the early stages of the process and recently began its community outreach to establish the parameters of the long-range plan.  At a recent public workshop meeting held on November 17, 2022, BFJ Planning made a presentation that provided an overview of the project and existing conditions, identified preliminary ideas and goals, and opportunities for public engagement, and explained the next steps in the process.  Sea Cliff Mayor Elena Villafane opened the meeting by urging residents to participate in the process by sharing their views as to what they think Sea Cliff should look like over the next 50 years.  The public comments received during the course of two-hour long workshop highlighted some of the competing interests and planning challenges that lie ahead, such as balancing the preservation of Sea Cliff’s existing character against the need for new housing that is affordable for young people and seniors.

Frank Fish, a principal partner of BFJ Planning, suggested to residents that the Village should consider rezoning the portion of the North Shore Country Club (“NSCC”) that is located within the Village to require cluster development and the preservation of open space.  Mr. Fish told residents that this portion of the NSCC represents the largest piece of open space in the Village, and is currently zoned Residence D, which allows for single-family homes on lots that are 20,000 square feet or more in size.  He cautioned that without such zoning changes, the parcel could be developed with single-family homes as of right.  In his view, a zoning amendment requiring cluster development would be a proactive measure that would require a future owner with development plans for the golf course to conserve open space.

The new Comprehensive Plan continues to be a work in progress.  According to information contained on the Village’s website, the goal is for the Village Board to adopt a new Comprehensive Plan in August 2023.  In the meantime, BFJ Planning, the Long-Range Steering Committee and the Village Board still have a lot of work to do to complete and adopt the plan.  BFJ expects to hold another public workshop in March 2023 , and the Village Board must hold a public hearing on the draft plan and conduct an environmental review under the State Environmental Quality Review Act (“SEQRA”) before it can adopt the new Comprehensive Plan.

Typically, zoning variances “run with the land”, and absent a specific time limitation, they continue until properly revoked. See, St. Onge v. Donovan, 71 NY2d 507, [1988]. As a result, variances cannot be made to apply only to the current owner. But under the Fair Housing Act (FHA), reasonable accommodations can be made that are essentially personal variances that expire upon the sale of the land and can be subject to “restorative provisions.”

Additionally, the Fair Housing Amendments Act of 1988 (FHAA) makes it unlawful to discriminate against “any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services of facilities in connection with such dwelling” on the basis of that person’s handicap. 42 U.S.C.A §3604(f)(2).

Discrimination is defined to include refusing to make reasonable accommodations in “rules, policies, practices or services” when necessary to afford a person with a handicap “equal opportunity to use and enjoy a dwelling.” 42 U.S.C.A. §3604(f)(3)(B). See, See, Trovato v. City of Manchester, 992 F. Supp 493 [D. N.H. 1997].

Under the FHAA, an accommodation is “necessary” to afford “equal opportunity” when plaintiffs have shown that but for the accommodation, they “will be denied an equal opportunity to enjoy the housing of their choice, and the “reasonable accommodations” requirement of the FHAA applies to zoning ordinances. Id.

For example, in the case of Austin v. Town of Farmington 826 F.3d 622 [2d Cir. 2016], the Austins obtained zoning variances to build a pool, fence and deck on their property to accommodate their disabled son. Located in Ontario County, New York, the Town Board of Farmington granted a “temporary accommodation” to allow for the proposed improvements. However, the resolution contained a restoration requirement that the Austins must completely remove, at their expense, the fence and pool within 21 days of the sale of the home or when their disabled child no longer lived at the property. The Austins constructed the pool and fence.

Two years later, the Austins filed suit, challenging the restoration provision. The Austins claimed (i) that the town’s denial of a reasonable modification was discriminatory in violation of the FHAA and (ii) the restoration provision was a retaliation by the Town for asserting their rights under FHAA . The district court dismissed the Austins’ complaint because the Austins failed to provide any evidence of discriminatory intent. 

In affirming in part and vacating in part the dismissal, the Second Circuit held that whether the resolution was reasonable was a complex balancing of factors. The court explained that the requested accommodation was reasonable as was requiring the removal of the pool improvements after the disabled child left the property. The court found that the Town clearly did not want the variances to “run with the land”- to be taken advantage of by later occupants without a disability. The court also considered the likelihood that a permanent variance would cause other landowners to seek similar variances without a disability.

As a result, the court found that there was no evidence of a retaliatory motive, and the restorative provision did not directly deprive the disabled child of his rights under the FHAA. But the court found that a question of fact remained regarding the “reasonableness” of the restorative provision and could not be resolved on the Town’s motion to dismiss.

Take away: local planning and zoning boards as well as land use practitioners must be knowledgeable of local zoning codes and our federal disability laws and account for them in their applications and decisions.

Long Island has seen a tremendous influx of investment in new industrial projects over the last two years, particularly in the self-storage, warehousing and distribution sectors. These projects promise to bring much needed, state-of-the-art facilities to Long Island’s towns, which industry leaders describe as a long-underserved market. Of equal importance to Long Island’s future is the tax revenue and jobs these projects will generate. However, as these new facilities come online, some local officials are starting to assess the downside of industrial growth and are looking to hit the pause button. On the Island’s east end, an initiative is currently underway that may result in a moratorium on industrial development in Calverton, the Town of Riverhead’s industrial hub.

            Calverton sits at the tail end of the Long Island Expressway. It is home to the former 2,900-acre military base turned industrial park known as the “Enterprise Park at Calverton” (or EPCAL) and several other industrial zoning districts that comprise the Town’s industrial center. In recent years, Calverton’s proximity to the Long Island Expressway, and other major roadways, and its stock of available undeveloped land have attracted strong interest from local and national industrial developers alike. Applications for several projects have already been filed with the Town that, if approved, would bring nearly 1.3 million square feet of new industrial space to the area. This does not include the 600-acre redevelopment of EPCAL that is awaiting the culmination of the Town’s sale of the property to Calverton Aviation & Technology. These figures have some Town residents worried.

            Earlier this month, the Town’s Planning Board commissioned a draft law calling for a moratorium on industrial development in Calverton. The draft specifically names several pending applications, but also calls for a complete freeze on the processing, review and approval of all new industrial projects within the hamlet. A copy of the draft law can be accessed here: https://www.lilanduseandzoning.com/wp-content/uploads/sites/128/2022/10/Calverton-Industrial-Moratorium-DRAFT-Local-Law-10.26.2022.pdf.

            The proponents of the moratorium are concerned that so much industrial development in Calverton will irreversibly change the area’s rural character and overburden the existing road network. Concerns over groundwater quality, environmental justice, and other environmental factors are also at the forefront of the discussion.

            However, as this matter moves forward, several key aspects of the proposed moratorium are still unknown. The most recent draft of the law does not say how long the freeze on applications for industrial projects would last. It also does not identify any exceptions to the moratorium or any procedure for seeking relief from the moratorium based on hardship. As drafted, the moratorium would even apply to development projects within the Calverton Camelot industrial subdivision at EPCAL, which the Town approved more than a decade ago and the realization of redevelopment of the former Grumman site that has been planned since 1998.

            Undoubtedly, the Town Board’s response to the moratorium question will have a profound impact on parties on both sides of this debate. The influence of Riverhead’s decision on this issue could also spill over into other Long Island towns that are experiencing a similar renewed interest in industrial development.

            We will be watching and reporting on this matter with great interest as it unfolds.  If the moratorium is adopted, the forecast for industrial development in Riverhead could be chilly.